Facebook, Google, ACLU Target Republican Online Privacy Bill

More opponents are lining up against congressional Republicans’ online privacy bill, including a trade group representing Facebook and Google — whose user data collection would be limited by the legislation — and the ACLU, which says it will limit states’ ability to pass their own restrictions.

NetChoice, a trade group that includes targeted ad giants Google, Facebook, and Yahoo, says a bill proposed by Republican Tennessee Rep. Marsha Blackburn to make web services and internet access providers like Comcast and Verizon get permission from users before collecting their data will end free services online.

“[I]magine a world where the next time you use a search engine, instead of seeing results, you see a requirement to enter a credit card. Or the next time you visit USA Today there is fewer content and even more ads on the screen,” NetChoice senior policy counsel Carl Szabo wrote in a blog post this week.

“In this alternate world,” he continued, “you are bombarded with pop-ups and interstitials, all of which are asking for consent in various ways: blanket consent for use of all ‘sensitive’ information, consent for use of some sensitive information, consent for use of sensitive and non-sensitive information, and so on.”

Szabo warns that will be the fate of the web if Congress advances the BROWSER Act. Under the law, companies on both sides of the online ecosystem would have to obtain opt-in consent from users before collecting and monetizing their sensitive data, a reversal of the current, largely opt-out requirement set down by the Federal Trade Commission. The definition of “sensitive” includes web browsing history, a category previously left unregulated before the FCC passed privacy rules aimed exclusively at internet service providers (ISPs) last year.

According to NetChoice, the bill would erase $340 billion in advertising revenue over the next five years, citing studies that show opt-in regimes are 65 percent less effective. The loss of targeted ads will mean a greater volume of ads, less content, and more paywalls across popular websites, consequences that will hit low-income Americans and small businesses hardest.

The group argues the FTC already enforces privacy standards and that the industry regulates itself. But the FTC rules only require opt-in consent for the most sensitive information, like health and financial data. Meanwhile, efforts by edge providers themselves, like Google Chrome’s “Do Not Track” feature, are largely ignored by other websites. There’s no law requiring they comply with the browser’s request.

Blackburn, who chairs a committee overseeing the FCC, sponsored the House repeal of the agency’s privacy rules. She and other Republicans said the FCC rules “focused on only one part of the internet eco-system and ignored edge provider services that collect as much, if not more data, than ISPs.”

Many of the Republicans who voted for the repeal count ISPs among some of their largest donors, and became the target of a groundswell of constituent criticism. Blackburn’s bill invited another wave of criticism, including from consumer advocate groups who say the legislation is at best a disingenuous attempt at saving political face with little chance of passing, and at worst cover for preventing states from passing their own privacy standards.

“[O]ur skepticism comes from a provision buried at very end of the bill that would explicitly preempt state legislation on these issues – even if a state passes legislation requiring higher privacy standards than Congress,” ACLU legislative counsel Neema Singh Guliani wrote of the bill. “The provision appears to be a naked attempt to undercut state privacy efforts.”

Some 17 states are working on online privacy legislation in the wake of the repeal of the FCC privacy rules. Those efforts would likely prove problematic for internet service and edge providers, who would have to adhere to different privacy standards across multiple states.

States like New Hampshire are considering rules tougher than those passed by the FCC, including barring ISPs from offering discounts to subscribers choosing to waive privacy protections. Other states are considering a ban on collection altogether.

“Rep. Blackburn’s bill would do precisely what industry wants, which is prevent states from taking their own actions to ensure high privacy standards,” the ACLU attorney wrote.

The pro-net neutrality group Public Knowledge has yet to stake out a position on the bill. Other groups that track privacy issues including Fight for the Future, TechFreedom, and the Association of National Advertisers oppose the bill.